Plumbers Local 250 (Murphy Bros.)

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 491 (N.L.R.B. 1993)

491
311 NLRB No. 54
PLUMBERS LOCAL 250 (MURPHY BROS.)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We correct the following inadvertent errors of the judge which do
not affect the outcome of this case. When listing the work that em-
ployees Ary, Erwin, Humbard, Johnston, Samperio, and Trahan were
qualified to perform on the Blythe project in fn. 12 of his decision,
the judge mistakenly included ‘‘hot tie-ins.’’ Also, the correct cita-
tion for Fischbach/Lord Electric Co. is 270 NLRB 856 (1984).
2 The Respondent excepts to the judge’s recommended Order and
notice as overbroad. We have modified pars. 1(a) and (b) of the
judge’s recommended Order to conform to his conclusions of law.
In addition, we note that although the judge inadvertently failed to
include the substance of par. 2(b) of his recommended Order in his
remedy section, the provision is appropriate.
Local Union No. 250, United Association of Jour-
neymen & Apprentices of the Plumbing &
Pipefitting Industry of the United States &
Canada, AFL–CIO (Murphy Brothers, Inc.)
and Rick D. Ary and Rodney L. Johnston.
Cases 21–CB–10947 and 21–CB–10980
May 28, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 9, 1992, Administrative Law Judge
George Christensen issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order, as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, Local
Union No. 250, United Association of Journeymen &
Apprentices of the Plumbing and Pipefitting Industry
of the United States & Canada, AFL–CIO, Gardena,
California, its officers, agents, and representatives,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Attempting to cause and/or causing Murphy
Brothers, Inc., or any other employer, to lay off em-
ployees for the sole reason that they are not members
of the Respondent.’’
2. Substitute the following for paragraph 1(b).
‘‘(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT attempt to cause or cause Murphy
Brothers, Inc., or any other employer, to lay off any
employee for the sole reason that the employee is not
a member of Local Union No. 250, United Association
of Journeymen & Apprentices of the Plumbing &
Pipefitting Industry of the United States and Canada,
AFL–CIO.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make Rick Ary and Rodney Johnston
whole for wage, fund contribution, fringe benefit, and
expense losses they may have suffered with interest
because we attempted to cause and caused Murphy
Brothers, Inc. to lay them off because they were not
members of Local 250.
WE WILL inform Rick Ary, Rodney Johnston, and
Murphy Brothers, Inc., in writing, that we have no ob-
jection to Murphy Brothers, Inc., or any other em-
ployer, performing work within our territorial jurisdic-
tion, employing Ary and Johnston.
LOCAL UNION NO. 250, UNITED ASSO-
CIATION OF JOURNEYMEN & APPREN-
TICES OF THE PLUMBING & PIPEFITTING
INDUSTRY OF THE UNITED STATES &
CANADA, AFL–CIO
Thomas A. Lenz, Esq., for the General Counsel.
Jeffrey L. Cutler, Esq., of Burbank, California, for the Re-
spondent.
Rick D. Ary and Rodney L. Johnston, of Bakersfield, Cali-
fornia, pro se.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On Au-
gust 27 and 28, 1991, I conducted a hearing at Los Angeles,
California, to try issues raised by a complaint issued on Feb-
ruary 27, 1991, based on a charge filed by Rick D. Ary on
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Read 1990 after further date references omitting the year.
2 Although every apparent or nonapparent conflict in the evidence
has not been specifically resolved below, my findings are based on
my examination of the entire record, my observation of the wit-
nesses’ demeanor while testifying, and my evaluation of the reli-
ability of their testimony; therefore, any testimony in the record
which is inconsistent with my findings is discredited.
3 Nonmembers were required to pay $7 per week ‘‘traveller dues’’
to Local 250, in addition to regular dues to their home locals.
December 10, 1990,1 in Case 21–CB–10947 and a charge
filed by Rodney L. Johnston on January 29, 1991, in Case
21–CB–10980.
The complaint alleged Local 250 by its job steward Fer-
nando Lizarraga violated Section 8(b)(1)(A) and (2) of the
National Labor Relations Act (the Act) by attempting to
cause and causing Murphy Brothers, Inc. (Murphy) to dis-
charge Ary and Johnston because they were not members of
Local 250.
Local 250 denied Lizarraga either attempted to cause or
caused Murphy to discharge the two, denied in any event
Local 250 was responsible for his actions, and asserted the
merits of the Johnston discharge may not be determined be-
cause a copy of the Johnston charge was not served on Local
250 within 6 months after the date of the discharge.
The issues created are:
1. Whether Lizarraga attempted to cause Murphy to dis-
charge Ary and Johnston.
2. Lizarraga caused Murphy to discharge the two.
3. If so, whether Lizarraga attempted to cause and caused
Murphy to discharge the two because thy were nonmembers
of Local 250.
4. If so, whether Local 250 thereby violated the Act.
5. If so, whether the issuance of a remedial order against
Local 250 vis-a-vis Johnston is barred because a copy of the
Johnston charge was not served on Local 250 within 6
months after the Johnston discharge.
The General Counsel and Local 250 appeared by counsel,
Ary and Johnston appeared pro se, and all were afforded full
opportunity to adduce evidence, examine and cross-examine
witnesses, argue, and file briefs. Both counsel filed briefs.
Based on my review of the entire record, observation of
the witnesses, perusal of the briefs, and research, I enter the
following
FINDINGS OF FACT2
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer thereto admitted, and I
find at all pertinent times Murphy was an employer engaged
in commerce in a business affecting commerce, and Local
250 was a labor organization within the meaning of Section
2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
In late summer 1990, Southern California Gas Co. (SC
Gas) awarded a contract to Murphy to lay a 27-mile pipeline
near Blythe, California.
At that time Murphy was a signatory member of either As-
sociated General Contractors of California, Inc. or Pipeline
Contractors of California, Inc. (or both) and bound by the
terms of a collective-bargaining agreement between those as-
sociations and Locals 246, 250, 342, and 460 of the United
Association of Journeymen & Apprentices of the Plumbing
& Pipefitting Industry of the United States & Canada, AFL–
CIO (UA).
The Blythe jobsite was within the jurisdiction of Local
250. Under the terms of the agreement, Murphy was required
to obtain employees it intended to assign work described in
the agreement through Local 250’s hiring hall, provided
Murphy could ask for and maintain on the job up to 50 per-
cent of the employees secured from the hiring hall, by name,
from Local 250’s out-of-work lists, and required Local 250
to register nonmembers on its out-of-work lists in a non-
discriminatory manner.
In accordance with that agreement, Local 250 permitted
nonmembers to register on its out-of-work lists and referred
registrants to jobs when requested by name, without regard
to their membership or nonmembership in Local 250.3
Ary and Johnston were residents of Bakersfield, Cali-
fornia, members of UA Local 460, and working for Murphy
as welders on a job at Los Banos, California, at the time
Murphy secured the Blythe job. Murphy Foreman Ernest
Miller and Louis E. (Eddie) DuPree also were working on
the Los Banos job. Miller was a member of Local 798 and
DuPree was a member of UA Local 250. Miller and DuPree
told Ary and Johnston the Blythe job would be starting up
about the time the Los Banos job would be completed, they
were going to that job, suggested Ary and Johnston secure
travel cards from Local 460, deposit the cards at Local 250’s
hiring hall, and they would request the two by name at that
hiring hall when the Blythe job started.
Murphy commenced work on the Blythe job in September.
Miller arrived at the site on September 13; DuPree arrived
on September 14.
Previous to September 14, both Ary and Johnston secured
travel cards from Local 460, deposited the cards with Local
250, and registered on Local 250’s out-of-work list for weld-
ers.
As promised, in their first call to Local 250 for employees
to man the Blythe job, either Miller or DuPree requested Ary
and Johnston, by name, for dispatch to the Blythe job. Local
250 then referred the two to the job (on their tender of travel
dues). The two arrived at the jobsite on September 14 with
the first contingent of employees dispatched to the jobsite by
Local 250 (about 35 in all), consisting of foremen, fitters,
welders, and helpers. All were members of UA locals, in-
cluding Locals 230, 246, 250, 342, 365, 403, 460, and 798.
Of the total, 19 were members of Local 250, 8 were mem-
bers of Local 460, 3 were members of Local 403, 2 were
members of Local 230, 2 were members of Local 798, and
there was 1 member from Local 246, 1 from Local 342, and
1 from Local 365. On September 17, a second sizeable con-
tingent was dispatched to the job by Local 250 (approxi-
mately 28), consisting of 23 members of Local 250 and 5
members of Local 460. Smaller numbers of employees were
subsequently dispatched by Local 250 through the balance of
the month, up to and including October 5. As one would sus-
pect the bulk of the work force on the job was drawn from
Local 250’s membership (about 67), with 19 from Local 460
and far fewer from other locals.
493PLUMBERS LOCAL 250 (MURPHY BROS.)
4 ‘‘Hot tie-ins’’ involves welding while gas may be present in pipe
being welded.
5 Lizarraga testified if the referred member was delinquent in his
dues, he ordered the member off the job and directed him to resolve
his delinquency.
6 It was undisputed and I find DuPree had and exercised power to
hire and fire employees, assign, and direct their work. I therefore
find at pertinent times DuPree was a supervisor and agent of Murphy
acting on its behalf within the meaning of Sec. 2 of the Act.
7 Local 798 members, although listed as welders in G.C. Exh. 6
as welders, are incorrectly so listed and not included.
8 It was undisputed and I find at pertinent times Johnson had and
exercised power to hire and fire employees and to assign and direct
their work. I therefore find at pertinent times Johnson was a super-
visor and agent of Murphy acting on its behalf within the meaning
of Sec. 2 of the Act.
9 Martin, a Local 250 member, was one of the welders working
alongside Ary and Johnston in DuPree’s pipe crew until mid-Octo-
ber, when he replaced DuPree as pipe crew foreman. It was undis-
puted in that role Martin possessed and exercised power to hire and
fire employees and to assign and direct their work. I therefore find
at pertinent times (while a foreman) Martin was a supervisor and
agent of Murphy acting on its behalf within the meaning of Sec. 2
of the Act.
10 Kenneth Erwin, Donald Humbard, Jose Jasso, Lizarraga,
Samperio, John Stephens, Raymond Trahan, and Gene Vickery.
Ary and Johnston (along with the other welders dispatched
to the job and put to work) passed welding tests administered
by SC Gas which qualified them to perform all phases of
welding at the jobsite other than ‘‘hot tie-ins.’’4
Prior to the time Murphy commenced work at the jobsite,
Local 250 designated Lizarraga as its job steward at the site.
He was Local 250’s sole representative at the site (Local
250’s business office and hiring hall was 160 miles away).
Lizarraga did not perform any productive work at the site
until the very end of the job, when only a few employees
remained at the site.
As each UA member referred to the job arrived at the job-
site, he presented a job referral slip issued by Local 250 to
Lizarraga and Lizarraga, after ascertaining he was current in
his dues to his home local and his travel dues, then cleared
him to go to work.5
In addition to clearing referred members for employment,
Lizarraga checked employees’ dues books, collected and re-
mitted dues payments to Local 250, maintained a check to
insure work described in the agreement was performed by
UA members with appropriate qualifications, processed UA
members’ complaints or grievances with appropriate Murphy
management, reviewed layoff lists prior to implementation,
and acted as a conduit for information and exchanges be-
tween Local 250 and management.
Ary and Johnston were assigned to work in a pipe gang
or crew under the direction of Job Foreman DuPree.6
The pipe was delivered to the jobsite in 80-foot segments,
placed on skids above ground, aligned, clamped into place
(by fitters), and the pipe gang (initially, consisting of Ary,
Johnston, Robert Martin, and Roman Samperio) attached two
pipe segments with a bead weld, followed by a hot weld. A
firing line crew followed, filling and capping the initial
welds. The welds were X-rayed, and a following repair crew
remedied any defective welds.
A second pipe gang was put to work sometime later to
speed completion of the job. At that time, the two gangs
leap-frogged each as they progressed down the pipeline.
Where road or stream crossings or other pipelines were en-
countered, connecting up those segments were skipped, for
later completion.
On October 1, there were 26 welders employed on the job;
15 Local 250 members, 9 Local 460 members, 1 Local 246
member, and 1 Local 403 member.7
Between October 1 and 18, the job was winding down
and, by the latter date, Murphy employed at the site 17 weld-
ers, including 9 Local 250 members, 6 Local 460 members,
1 Local 246 member, and 1 Local 403 member.
Noting the job was winding down, Ary approached Mur-
phy’s job superintendent John Johnson8 in mid-October, stat-
ed the employees were expecting a major layoff, the rent for
the space where he was parking his trailer home was coming
due; if he paid another full month of rent he couldn’t get a
refund if he was laid off prior to the end of another month;
and asked how long he could expect to remain on the job.
Johnson responded Ary was doing a good job, to go ahead
and pay a month’s rent, and he would keep Ary on the job
until it was completed.
Johnston received a similar assurance from DuPree about
the same time; DuPree advised him he was going to be doing
tie-ins (to pipe laid under crossings, which was left to last),
he could keep whoever he wanted, and he was going to keep
Ary and Johnston on the job until it was completed. Johnston
reminded DuPree that he and Ary were travel cards. DuPree
responded he could keep 50 percent nonmembers of Local
250 on the job and he would keep Ary and Johnston.
On October 18, Johnson instructed Foreman Robert Mar-
tin9 to reduce the number of welders remaining on the job
to 10 the next day (Friday, October 19) and told Martin he
wanted to keep Ary and Johnston among the 10. Martin pre-
pared a layoff list, naming the single Local 246 and Local
403 members, 4 Local 460 members (other than Ary and
Johnston), and a single Local 250 member for layoff October
19, retaining Local 250 members/welders10 and Local 460
members/welders Ary and Johnston on the payroll
(welder/foremen Local 250 members DuPree and Martin also
remained on the payroll).
Martin considered the length of time the 10 welders he de-
cided to retain had been on the job, their skill level, and the
supervisors’ preferences in selecting the 10. He stated that al-
though on many jobs it was the practice to lay off all em-
ployees working on travel cards at a site before laying off
employees who were members of the local union with juris-
diction at the worksite, the practice was not universal and
was not followed on many occasions. Johnston corroborated
Martin, stating on a number of occasions he was retained on
jobs while working on a travel card after members of the
local union with jurisdiction over the jobsite were laid off.
The welders selected by Martin for retention on the job
commenced work at the jobsite on the following dates:
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Welder-Steward Lizarraga started work as a steward at the site
on September 13 and, by custom and practice, was the last employee
laid off, irrespective of other criteria.
12 Completing standard tie-ins; fabrication (fabrication and installa-
tion of manifolds, check valves, and fittings on the pipeline); the hot
tie-ins; and miscellaneous welding work (welding supports for blow-
off stacks, etc.).
13 The laid-off employees were normally provided one of the cop-
ies for filing with Local 250 on reregistration.
14 With the scheduled October 19 layoff, all welders at the jobsite
who were not members of Local 250 were laid off, except for Local
460 members Ary and Johnston (the four Local 798 members re-
tained after October 20—Adams, Allen, Pittman, and Ridge—were
fitters).
15 Lizarraga conceded that was his consistent position.
16 Ary testified he was afraid if he stayed on the job he might
wake up to find his truck damaged or destroyed.
17 DuPree informed Johnston of Johnson’s decision that afternoon.
18 The employees supplied their own rigs and welding equipment
on the job and were supplied fuel and paid for the use of their
equipment by Murphy.
19 The record does not indicate the distribution and performance of
job assignments after October 20.
September 14 Ary, Johnston, and Trahan
September 17 Stephens
September 18 Jasso, Samperio, and Vickery
September 24 Erwin
October 2 Humbard11
Four of the eight Local 250 members/welders selected for
retention were qualified to perform ‘‘hot tie-ins’’—Jasso,
Lizarraga, Stephens, and Vickery. Ary, Erwin, Humbard,
Johnston, Samperio, and Trahan were qualified to do all
other phases of the remaining welding work at the jobsite.12
During the following morning (Friday, October 19), Mar-
tin showed Lizarraga the layoff list, so Lizarraga could make
entries on the Local 250 job referral slips he received from
the employees scheduled for layoff, certifying to the layoff
date.13
Lizarraga objected to Martin’s failure to include Ary and
Johnston on the list, stating all travel cards had to go.14
Martin was aware Johnson wanted to keep Ary and John-
ston on the job, because they had been on the job from the
beginning, were on the job pursuant to a name call, and
Johnson was impressed with their work. Johnson, who was
standing by, confirmed he wanted to keep the two on the job.
Lizarraga responded that was not going to happen, ada-
mantly maintaining his position that all travel cards had to
go.15 Johnson finally gave in, throwing up his arms and
walking away.
Martin then added the names of Ary and Johnston to the
layoff list and turned over the list to the office for prepara-
tion of final paychecks for the employees named thereon.
Lizarraga and Martin contacted Ary. They informed Ary
there was going to be a layoff, and although Johnson wanted
to keep him on the job, Ary had to go because Lizarraga
wanted all travel cards off the job. Ary protested, stating he
had been a job steward, he was familiar with the terms of
the agreement covering his and other UA members’ employ-
ment, and Murphy had a right to keep 50 percent of the em-
ployees it wanted on the job, including travel cards. Johnston
was also notified of his layoff and the reason therefor.
Ary contacted DuPree, asking DuPree to contact Johnson
to request Johnson come to his worksite. DuPree complied.
When Johnson arrived, Ary told him he paid a month’s rent
on his trailer site in reliance on Johnson’s assurance he was
going to remain on the job and not be laid off. Johnson re-
sponded he wanted to keep him on the job, but Lizarraga
was demanding he be laid off. Ary responded if Local 250
was going to mess him up, he didn’t want that kind of trou-
ble,16 Johnson closed the conversation with the statement the
least he could do was give Ary and Johnston another day on
the job, to come in the following day (Saturday, October 20),
and he would release them at 9 a.m. and pay them for the
day (at 1-1/2 time).17
In view of that decision, final paychecks for Ary and
Johnston were not prepared and distributed to them on Octo-
ber 19, as they were to the other employees named on the
layoff list.
Ary and Johnston came to the jobsite prior to starting time
the following morning (in their rigs) and were in the gasline,
preparing to gas their vehicles, when Lizarraga noticed their
presence.18 Johnson and Martin were present. Lizarraga told
Ary he couldn’t have any gas, he no longer was employed
at the site, he was laid off the previous day.
Ary responded he wasn’t laid off, he had not received a
final paycheck the previous day, and Johnson told him he
was not laid off with the others. Johnson confirmed Ary’s
statement, stating he planned to continue Ary on the job that
day.
Lizarraga responded no, he was not going to do that; all
travel cards had to go, Ary and Johnston have been laid off.
Ary cursed Lizarraga and both Lizarraga and Martin left the
area. Johnson approached Johnston, who was in his vehicle
behind Ary’s vehicle, told Johnston that Lizarraga opposed
his working that day or there would be more trouble and in-
structed Johnston and Ary to come to his office. Ary and
Johnston fueled their vehicles and went to Johnson’s office.
Ary stated he was unable to understand why Lizarraga would
not let Johnson choose the employees he wanted to keep on
the job. Johnson responded Lizarraga told him it could cost
him more than it was worth to keep Ary and Johnston on
the job.
Johnson handed Ary and Johnston their final paychecks,
including call-in pay for October 20, the two left the jobsite
and, after collecting their gear, left the Blythe area.
As previously noted, the eight remaining Local 250
members/welders on the payroll after October 20 were
Erwin, Humbard, Jasso, Lizarraga, Samperio, Stephens,
Trahan, and Vickery, along with Local 250 members/Job
Foremen DuPree and Martin.
Jasso, Lizarraga, Stephens, and Vickery were qualified to
perform hot tie-ins; Erwin, Humbard, Samperio, and Trahan
were not, possessing the same qualifications as Ary and
Johnston.
After October 20 Jasso, Lizarraga, Stephens, and Vickery
completed hot tie-ins and the other welding work was also
completed (standard tie-ins, welding of supports for blowoff
stacks, fabrication, and installation of manifolds, check
valves, and fittings and other welding work) presumably by
Erwin, Humbard, Samperio, and Trahan, with a possible as-
sist by Jasso, et al.19
On November 3, Foreman DuPree and welders Erwin,
Humbard, Samperio, and Trahan were laid off; on November
495PLUMBERS LOCAL 250 (MURPHY BROS.)
20 Laborers Local 322 (D’Angelo Bros.), 295 NLRB 1036 (1989);
Fischback/Lord Electric Co., 270 NLRB 836 (1984); Laborers Local
332 (Master Masonry), 269 NLRB 366 (1984). Also see Carpenters
Local 546 (Duffee Forms), 300 NLRB 437 (1990).
8, Foreman Martin and welders Stephens and Vickery were
laid off; and on November 10, welder Jasso and Steward
Lizarraga were laid off.
Ary filed his charge with Region 21 on December 10,
1990 (Case 21–CB–10947). Region 21 certified it mailed
copies of the charge to Local 250 and counsel for Local 250
on December 11, 1990, by certified mail, return receipts re-
quested. A return receipt executed by Local 250 and dated
December 12, 1990, was delivered to Region 21 by the post
office and is in the record.
Johnston filed his charge with Region 21 on January 29,
1991 (Case 21–CB–10980). On January 30, 1991, Region 21
certified it mailed copies of the charge to Local 250 and
counsel for Local 250 by certified mail, return receipt re-
quested. No return receipts from either Local 250 or counsel
for Local 250 appear on record.
The complaint consolidating the two cases issued on Feb-
ruary 27, 1991. Region 21 certified it mailed copies of the
complaint to Local 250 and counsel for Local 250 on Feb-
ruary 27, 1991, by certified mail, return receipt requested.
Return receipts executed by Local 250 and counsel for Local
250 and dated March 1, 1991, were delivered to the Region
by the post office and are in the record.
B. Analysis and Conclusions
1. Lizarraga’s alleged conduct
The complaint alleged and Local 250 denied its admitted
job steward, Lizarraga: (1) attempted to cause Murphy to lay
off Ary and Johnston; (2) caused Murphy to lay off the two;
and (3) caused Murphy to lay off the two because they were
not members of Local 250.
Lizarraga corroborated Martin’s testimony that Lizarraga
demanded that Murphy lay off Ary and Johnston; insisted,
over Johnson’s and Martin’s repeated statements Murphy did
not want to lay off the two, the two be laid off; and sought
and secured the layoff of the two because they were not
members of Local 250 and he wanted whatever work was
left at the jobsite performed by Local 250 members.
2. The alleged violation
It is an unfair labor practice under Section 8(b)(1)(A) for
a labor organization to restrain or coerce employees in the
exercise of their rights under Section 7 of the Act, including
their right to refrain from supporting policies of a labor orga-
nization, and it is an unfair labor practice under Section
8(b)(2) of the Act for a labor organization to cause or at-
tempt to cause an employer to discriminate against an em-
ployee on any ground other than his failure to tender the
periodic dues and initiation fees required under a valid union
agreement.
In this case Lizarraga attempted to and succeeded in en-
forcing a Local 250 practice or policy designed to maximize
the employment opportunities of its members, i.e., the lay off
of all travelers and retention on the job of its members when
a job was nearing completion and resulting layoffs reduced
the available work and consequent employment opportunities.
Martin and Johnston testified, however, the practice or
policy was not uniformly followed; it was solely within the
employer’s discretion to decide whether to follow it; and on
many occasions, as here, the employer failed or refused to
follow the practice or policy, retaining travelers of his choice
on jobs until the jobs were completed, meanwhile laying off
members of the local union with territorial jurisdiction over
the worksite.
It was established Murphy wanted to employ Ary and
Johnston on the Blythe job so long as work they were capa-
ble of performing was not completed and that Ary and John-
ston resisted Lizarraga’s effort to run them off the job so
Local 250 members would perform the work Murphy desired
to assign to them. But for Ary’s, Johnston’s, and Murphy’s
fear of Local 250’s retribution in the event Murphy failed or
refused to comply with Lizarraga’s demand that Ary and
Johnston be laid off along with the other travelers still on the
job on October 19, there is no question Murphy would have
kept Ary and Johnston on the Blythe job so long as work
remained to be completed within their competency.
I therefore conclude Local 250 by Lizarraga attempted to
cause and caused Murphy to lay off Ary and Johnston, there-
by violating Section 8(b)(1)(A) and (2) of the Act,20 unless
Local 250 may avoid liability thereof on grounds recited
hereafter.
3. Lizarraga’s agency status
Local 250 contends it is not liable for Lizarraga’s actions
described above on the ground he was not acting within the
scope of his authority as its agent in taking those actions.
With Local 250’s office and hiring hall 160 miles away,
Lizarraga was Local 250’s sole representative at the jobsite.
While paid by Murphy, except for a short period near the
end of the job, he spent his workdays on union business, in-
cluding the collection of referral slips from UA members
sent to the job, examination of the referred members’ dues
books to ascertain if they were current in their dues pay-
ments to their home locals and current in their travel dues
payments to Local 250, collected travel dues and remitted the
payments to Local 250, refused to permit referred members
to go to work and sent them to the Union to pay up any dues
arrearages he noted, adjusted grievances of UA members on
the jobsite with Murphy managers, acted as a conduit be-
tween Local 250 and Murphy managers, reviewed and ap-
proved layoff lists, and was recognized and treated as Local
250’s agent by both the UA members employed on the job
and Murphy’s managers.
Although neither the constitution and bylaws of Local 250
and its parent nor the collective-bargaining agreement con-
tain language authorizing Lizarraga to attempt to cause or to
cause Murphy to refrain from hiring an employee or to at-
tempt to cause or to cause Murphy to remove an employee,
it is clear Lizarraga believed he had and exercised that au-
thority as within his general authority and all affected parties
accepted his authority to take such actions. It is also clear
the actions taken were for the benefit of Local 250, pursuant
to a Local 250 practice or policy, and were not repudiated
by Local 250.
Section 2(13) of the Act states the question of whether
acts of an alleged agent were actually authorized or subse-
quently ratified is not controlling, and the Board has held in
many cases where an alleged agent had apparent authority to
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Longshoremen Local 6 (Sunset Line), 79 NLRB 1487, 1507
(1948).
22 Yellow Freight System, 307 NLRB 1024 (1992); Iron Workers
Local 433 (United Steel), 280 NLRB 1325 (1986); Bellkey Mainte-
nance Co., 270 NLRB 1049 (1984).
23 Hospital & Service Employees Local 399 v. NLRB, 798 F.2d
1245 (9th Cir. 1986).
24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
act on his principal’s behalf and all affected parties accept
his authority to act, his principal shall be bound by his acts.
As the Board stated in the lead case on the subject,21 ‘‘A
principal may be responsible for the acts of his agent within
the scope of the agent’s general authority or the ‘scope of
his employment’ . . . even though the principal has not spe-
cifically authorized or indeed may have specifically forbid-
den the act in question. It is enough if the principal actually
empowered the agent to represent him in the general area
within which the agent acted.’’ The Board has consistently
applied that rule since.22
On the basis of the foregoing, I conclude Lizarraga acted
within the scope of general authority conferred on him by
Local 250 in performing the acts found above to constitute
an unfair labor practice; I therefore conclude Local 250 is re-
sponsible thereof.
4. The alleged failure of service
Local 250 contends no remedial order may be entered with
respect to Johnston on the ground Local 250 was not served
with a copy of the Johnston charge within 6 months after the
date the unfair labor practices were committed, as required
by Section 10(b) of the Act.
The unfair labor practice was committed on October 20,
1990.
The Johnston charge was filed with Region 21 on January
29, 1991.
A Region 21 secretary certified she mailed a copy of the
charge to Local 250 and to Local 250’s counsel on January
31, 1991, by certified mail, return receipt requested, but Re-
gion 21 failed to produce any return receipts executed by ei-
ther Local 250 or by Local 250’s counsel.
However, a complaint consolidating the Ary and Johnston
charges was issued on February 27, 1991, and both Local
250 and Local 250’s counsel executed and returned receipts
acknowledging their receipt of the consolidated complaint on
March 1, 1991. Local 250 (by counsel) filed an answer to
the consolidated complaint on March 5, 1991.
Thus both Local 250 and its counsel received actual notice
of the gravamen of the Johnston charge (and Lizarraga gave
a statement to Region 21 concerning his actions vis-a-vis
Ary and Johnston), Local 250 filed its answer to those por-
tions of the complaint based on the Johnston charge, and
both Local 250 and its counsel were fully apprised of the
substance of the Johnston charge within 6 months of the date
of the commission of the unfair labor practice alleged in the
complaint.
Local 250 was not prejudiced either in its preparation or
presentation of defenses to the matters by nonreceipt of the
Johnston charge, because both Local 250 and its counsel
were privy to Region 21’s investigation of the Johnston
charge, saw the complaint, and several extensions of the
hearing date were granted after Region 21’s receipt of Local
250’s answer to the consolidated complaint.
Under similar circumstances, the Ninth Circuit Court has
held the receipt of actual notice of the substance of a charge
by the person alleged to have committed the unfair labor
practice recited in the charge within 6 months after the com-
mission of the alleged unfair labor practice constituted com-
pliance with the service mandate of Section 10(b) of the
Act.23 The facts recited above dictate a similar result.
On the basis of the foregoing, I conclude Local 250 and
its counsel received actual notice of the substance of the
Johnston charge within 6 months after the commission of the
unfair labor practices alleged there, thereby satisfying the
service mandate of Section 10(b) of the Act.
CONCLUSIONS OF LAW
1. At all pertinent times Murphy was an employer engaged
in commerce in a business affecting commerce, and Local
250 was a labor organization within the meaning of Section
2 of the Act.
2. At all pertinent times Johnson, DuPree, and Martin were
supervisors and agents of Murphy acting on its behalf within
the meaning of the Act.
3. At all pertinent times Lizarraga was an agent of Local
250 acting on its behalf within the meaning of Section 2 of
the Act.
4. Local 250 violated Section 8(b)(1)(A) and (2) of the
Act by attempting to cause and causing Murphy to lay off
Ary and Johnston because they were not members of Local
250.
5. The Board is not barred from issuing an order rem-
edying Local 250’s discrimination against Johnston under
Section 10(b) of the Act.
6. The unfair labor practices enumerated above affected
and affect commerce as defined in the Act.
THE REMEDY
Having found Local 250 engaged in unfair labor practices,
I recommend Local 250 be directed to cease and desist there-
from and to take affirmative action designed to effectuate the
purposes of the Act.
Having found Local 250 discriminatorily caused Murphy
to lay off Ary and Johnston prior to the time they would
have been laid off but for the discrimination practiced against
them, I recommend Local 250 be ordered to make Ary and
Johnston whole for wage losses they suffered by virtue of
Local 250’s discrimination against them in the manner set
forth in Our Lady of Lourdes Health Center, 306 NLRB 337
(1992), and Ogle Protection Service, 183 NLRB 682 (1970),
and for contributions or fringe benefit losses they suffered in
the manner set out in Kraft Plumbing & Heating, 252 NLRB
891 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), and
Merryweather Optical Co., 240 NLRB 1213 (1979), with in-
terest on the amounts due calculated under the formulae pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended24
497PLUMBERS LOCAL 250 (MURPHY BROS.)
25 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Local Union No. 250, United Association
of Journeymen & Apprentices of the Plumbing and Pipe-
fitting Industry of the United States & Canada, AFL–CIO,
Gardena, California, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Attempting to cause and/or causing Murphy or any
other employer to lay off nonmembers prior to laying off
Local 250 members on jobs within Local 250’s territorial ju-
risdiction.
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights under Section 7 of
the National Labor Relations Act, including their right to fail
or refuse to comply with Local 250’s practices or policies
and attempting to cause or causing Murphy Brothers or other
employers to lay off employees for reasons other than their
failure to timely tender initiation fees and dues required
under a union-security agreement.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Rick Ary and Rodney Johnston for wage,
fund contribution, fringe benefit, and expense losses they
may have suffered by virtue of the discrimination practices
against them in the manner prescribed in the remedy section
of this decision.
(b) Inform Rick Ary, Rodney Johnston, and Murphy
Brothers, Inc., in writing, Local 250 has no objection to the
employment of Ary and Johnston by Murphy Brothers Inc.
or any other employer on jobs within 250’s territorial juris-
diction, as long as Murphy Brothers or any other employer
wishes to employ them.
(c) Post at its business offices, meeting halls, and on bul-
letin boards maintained by Murphy Brothers and other em-
ployers within its territorial jurisdiction, in places where no-
tices to its members are customarily posted, the attached no-
tice marked ‘‘Appendix.’’25 Copies of the notice, on forms
provided by the Regional Director for Region 21, shall be
signed by an authorized representative of Local 250, posted
immediately upon their receipt and maintained for 60 con-
secutive days thereafter. Reasonable steps shall be taken to
ensure the notices are not defaced or covered by other mate-
rial.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.